Monopoly: Authority Isn’t a Game

BackgroundAttorney Spirk and the Council objected to the word and, more importantly, the concept of “monopoly” put forward on page 2 of the ordinance: “to establish a board of ethics with a monopoly on ethics advice, training, disclosure and enforcement in order to provide for the fair and effective administration and enforcement of this code.” Mr. Spirk said that, from a legal point of view, this would be contrary to state and local ability for solicitors to give advice. He wondered if this would permit the ethics board to supersede the role of the solicitor, administration and human resources.

It is the opinion of experts on ethics programs (e.g. Robert Wechsler, Director of Research, City Ethics & Mark Davies, long time Director of NYC’s Conflicts of Interest Board) that the board of ethics have sole authorityin the areas of advice, training, disclosure & enforcement, Local Government Ethics Programs 2 (LGEF2) pg. 79)

“Here are the essential elements of a local government ethics program, according to Mark Davies, longtime director of New York City’s Conflicts of Interest Board:

(ii) three kinds of sensible disclosure of interests: an annual disclosure statement, disclosure when a conflict arises (transactional disclosure), and disclosure when someone bids for business or requests a permit (applicant disclosure); disclosure is the democratic way of letting people know about possible conflicts of interest;

(iii) effective administration, featuring an independent ethics board with teeth, which gives swift advisory opinions, which has a monopoly on interpreting and enforcing the code, which can give waivers for exceptions, and which provides training for all officials and employees, as well as for everyone who does business with the local government; and

(iv) whistle-blower protection so that government employees (the people who know what’s going on) and others will be able to report violations without endangering their jobs and pensions.”

“It is also important that the ethics officer not be selected by or responsible to any official or employee other than an ethics board or, if there is no ethics board, a selection board consisting of representatives of local organization representatives, or an inspector general, auditor, ombudsman, or other independent official charged, at least partially, with ethics enforcement” (582-3). “The most common practice is for the city or county attorney ora member of the office to either be named ethics officer or, without any special title, provide ethics advice anyway. The problems with this approach are discussed at length below

It is important that an ethics officer, or the ethics board staff, have a monopoly on giving ethics advice, either alone or in conjunction with the ethics board. Otherwise, officials and employees will do what is known as “forum shopping,” going to the individual they feel is most likely to give them the answer they want, whether it is a supervisor, department or agency head, or local government attorney. An ethics program’s monopoly on giving ethics advice should also mean that officials cannot go to a state ethics officer either, unless the relevant law is only a state law,

that is, only when there is no relevant city or county law.

It is also important that the ethics officer not be selected by or responsible to any official or employee other than an ethics board or, if there is no ethics board, a selection board consisting of representatives of a local

“Another way in which an ethics board needs to be independent is by having a monopoly on ethics training, advice, disclosure, and enforcement. This may appear to be not about independence, but about power, as it is when a council or agency says it needs to enforce its own ethics in order to be independent. But the situation is different with an ethics board. An ethics board’s monopoly is necessary to ensure the independence, effectiveness, and consistency of an ethics program and to assure the public that only the ethics board will interpret, administer, and enforce the ethics code.

The alternative is what is known as “forum shopping,” where officials and employees can choose where to get their ethics training (say, from a municipal association), where to seek their ethics advice (say, from the city attorney), and where to make their financial disclosures (say, to the state rather than to the city or county). The alternative, with respect to enforcement, is to allow, say, the legislative body or city manager to decide some cases, or give the inspector general, district attorney, or state attorney general the authority to dismiss or settle a case and prevent it coming before the ethics board (or try the case poorly, since it is a low priority for them) The alternative is to provide inconsistent training and advice, inconsistent interpretations of ethics provisions, and inconsistent enforcement decisions, so that no one knows what is truly required of them, so that there is effectively no guidance in a program where guidance is supposed to be the principal activity. The alternative is to allow those with connections to use their connections to get the advice they want and to avoid enforcement that is the alternative is preferential treatment in a program that aims to prevent preferential treatment.” (LGEP2 pg. 748)

Reason for Monopoly on Training“ An ethics board’s training program should be both exclusive and mandatory. If the training is not sufficient, the board should be held accountable.There simply are no adequate alternatives. The alternatives that do exist, such as an hour or two lecture sponsored by a municipal association, do not even focus on the particular ethics program. And not only is a municipal association not accountable for the quality of its training, but its loyalty is to its members, high-level municipal officials, not to the public. There are similar problems with training by the city or county attorney’s office. There is also the problem of lack of both expertise and commitment to a quality ethics program.

Nor should a council seminar with an external speaker be considered sufficient, although this may be a good supplement. Why? Because ethics training is not just a course like any other course. It is an opportunity to explain a particular ethics program, its values, its goals, and the reasons why it is important. It is also a way to get everyone on the same page. There cannot be competing visions of the ethics program or of government ethics in general (although officials should, of course, be permitted to question elements of the program they feel are wrong or harmful and recommend ones they feel are important to add). (LGEP2, 749)

Reasons for Monopoly on Advice“Since an official who follows ethics advice cannot be charged with an ethics violation, officials cannot be allowed to get this advice from someone

they feel will give them the green light to do what they want. Nor should they get advice from someone the public might reasonably see as representing their interests, rather than the public interest.

A large percentage of ethics scandals feature an official getting the go-ahead from a government attorney. Not only is the official off the hook, but the government attorney is not held accountable either. At worst, he made a mistake. The result is that, instead of preventing ethical misconduct, the advice undermines the ethics board’s ability to enforce the ethics code and create a healthy ethics environment.

When a government attorney gives ethics advice, the problem is not necessarily the quality of the advice, but rather the provision of ethics advice at all. A government attorney is likely to have limited knowledge of government ethics, and a lawyer should not be providing advice about an area in which he lacks expertise. In addition, a government attorney has an interest (or at least, a perceived interest), personal or political, in helping his “client”, the official, in a legal (representing the official, trying to help the official do what he would like to do, if it is legal) rather than an ethical (representing the public, trying to help the official act in a way that will not create an appearance of impropriety) way. (LGEP2, pg 750)

“Another reason for an ethics board to have a monopoly on ethics advice is to ensure consistency and create a public body of advice on which officials can rely. When government attorneys, supervisors, and others are permitted to give ethics advice confidentially, without any accountability or transparency, this seriously undermines the attempt to create a public body of advice. Instead, there is a hodgepodge of advice that, when officials discuss conflict situations, will make them confused about what is the most responsible way to deal with these situations.” (LGEP2, Pg 751)

Reasons for Monopoly on Disclosure. A monopoly on disclosure is the norm. Usually state disclosure requirements are less demanding.(LGEP2, pg 751)

Reasons for Monopoly on Enforcement. “A monopoly on ethics enforcement is the most difficult monopoly to achieve. Many more individuals and bodies are involved in the enforcement business than in training, advice, and disclosure. This fact emphasizes how special government ethics programs are in the priority they give to training, advice, and disclosure.

Local legislative bodies sometimes want to have more control over the enforcement part of an ethics program than they can have by selecting ethics board members and holding the board’s purse strings. With respect to officials, sometimes they limit ethics board enforcement to making recommendations to the legislative body, a situation commonly referred as “toothlessness.” Sometimes they prohibit the board from having jurisdiction over their members and their staff altogether. Instead, they self-regulate their members’ ethics, as Congress does (and with no better results).

Similarly, mayors and city or county managers also sometimes seek to prevent ethics boards from having the authority to enforce the ethics code against employees. Unions, too, sometimes insist that ethics matters have to be dealt with through their grievance procedures rather than via the government ethics process.

If legislators, lawyers, or others exempt themselves in any way from the ordinary enforcement process, or play any role in it, other officials and employees will see ethics

enforcement as untrustworthy, especially when complaints are dismissed or serious violations lead to no sanctions. The ethics enforcement process needs to be the ethics board’s monopoly in order to convince the public that enforcement is unbiased and unaffected by politics.

Some legislative bodies pass ethics codes that make ethics violations criminal offenses. This gives enforcement authority to criminal enforcement agencies, including the police, the district attorney, the state’s attorney, and the state attorney general. Sometimes ethics boards are not allowed to proceed if there is a criminal investigation or if criminal charges have been dismissed or settled. Sometimes the board has to wait until any criminal matters are resolved, whether they’re ethics violations or criminal violations, such as bribery or fraud. See the section on criminal enforcement for more about this important issue.

Of course, crimes such as bribery and embezzlement must be handled by criminal authorities, but government ethics violations should not be handled by anyone other than the ethics board and its staff.

The other major area of conflict with respect to enforcement is with inspectors general and, sometimes, auditors. Their focus is supposed to be on fraud, waste, and the mismanagement of government resources. But sometimes they are given jurisdiction over conflicts of interest matters, either fully in the form of an ethics program led by an inspector general or auditor” (LGEP2,pg.752-4). (There follows discussion of this but not included here – B).

“Giving an ethics board the authority to initiate investigations on its own and file its own complaints is an important sign of whether government officials are truly willing to give a board independence and authority. (LGEP2, pg.755)